Chapter Three : Positive Rules of Conflict of

Laws1
Introduction
Though the Egyptian legal system does not contain
a specific legislation on conflict of laws, most of the
Egyptian rules of the conflict of laws can be found in the
Egyptian Civil Code. However, many other rules of
conflict of laws can be found in other different statutes
such as the Commercial Code Act no 17 /1999 and the
Arbitration Act no 27 /1994. These rules of conflict of
laws are therefore qualified as positive rules.
The Egyptian Positive rules for the conflict of laws
cover two main categories of relations. The First category
includes matters relating to persons while the second
group is concerned with pecuniary transactions. It is to be
noted that both topics share similar questions of formality
which can be solved by similar rules.
Therefore, this chapter will contain the following
three sections:
Section One :

Conflict of laws in Formality.

Section Two:

Conflict of laws in Personal Status

Section Three:

Conflict of laws in Assets.

This part is an update and an addition to a previous treaties on private

international law published by Prof. Dr. Hisham A. Sadek, Prof.Dr Ibrahim
N. Saad, Prof. Dr. Hafiza E. Al Haddad, Dr. Nader M. Ibrahim, Private
International Law: Selective Basics Under Egyptian Law, 1st edition,
Alexandria 2000/2001. I thank them all for allowing me to perform the update
and addition to their valuable work and I would like to express my gratitude
for their permission.

Section One : Conflict of Laws in Formality.

1-Introduction
Formality is a term general refers to
"procedure" in contrast to "substance". The Majority of
modern legal systems have been settled on the adoption
of the "Locus Regit Actum" rule in regard to matters of
formality.
This rule means that "...when a legal
transaction complies with the formalities required by the
law of the state where the transaction is done, it is also
valid in the state where it is to be given effect although by
the law of that state other formalities are required..."2
The Egyptian law adopted the above mentioned
rule in Art (20) of the Civil Code. However, the
contracting parties were permitted to apply to of formality
irrespectively, the law of the state in which the
transactions were concluded, the law applicable to the
matters of substance, i.e. Lex Causae, the law of the
parties common domicile or the law of the parties
common nationality.
Art (20) of the Civil Code provides that:
"Contracts between living persons are governed as
regards their formalities by law of the state in which the
contracts are concluded. They may also be governed by
the law regulating the substantive issues of a contract, by
the law of the common domicile of the parties or their
common law of nationality"

See BLACKS LAW DICTIONARY (6th ed.1990) 941.

2- Historical Background
Questions of conflict of laws first appeared in the
middle ages within the context of business relations
among the cities of north Italy. Therefore, the first
solutions for conflict of laws can be traced back to the
Glossoe of the old Roman law doctrine (Glossators). In
the 12th and 13th century those lawyers subjected all
transactions to the law of the place where they have been
made. However, these early glossators did not
differentiate between "substance" and "formality". The
distinction did not take place until the times of the roman
glossator, Curtius, in the later 15th century.
Curtuis is considered to be the first lawyer to
differentiate between "substance" and "formality" in
transaction. This accidently took place by when he
explained the application of the "Locus Regit Actum" rule
to the substance of the transaction. He founded the
application of that rule upon the implied will of the
parties. This interpretation opened the path for the party
autonomy rule that was advocated by the French lawyer,
Dumoulin, in the 16th Century. Dumoulin, argued for the
recognition of the contracting parties authority to subject
their contract to law other than the law of the place of
contract. I.e. Lex Loci Contractus. His argument was that
an express will is better for consideration that an implied
will.
At the 16th century it was settled the "Locus Regit
Actum" rule was applicable only to the formal aspects of
transactions. The substantive aspect of transactions was
allowed be governed by another law at that time. It is
worthy to mention that the the "Locus Regit Actum" rule

disappeared temporarily in the era of the domination of

the territorial school which prevailed in the 16 th century.
Under such school, conflict of laws was solved by
analyzing the laws themselves and not by analyzing the
transactions and since that most of the laws were
considered territorial the transaction's formality became
subject to the law of the where the transaction was
created.
The the "Locus Regit Actum" rule reemerged in
modern time under practical reasons. These reasons
aimed at facilitating the creation of transactions. They
took into consideration that the concerned parties may
face difficulty in knowing the details of formalities in
other laws beside that of the place where the transaction
was created. In addition, some types of formalities cannot
be satisfied in any place. E.g. interference of a public
notary.
3- Is the "Locus Regit Actum" rule Facultative?
Those who explained the application of the "Locus
Regit Actum" rule through the territorial application of
law have, logically, reached the conclusion that this rule
is a mandatory one. However, such conclusion does not
suit the modern philosophy for the "Locus Regit Actum"
rule which is the facilitation. This philosophy directs
towards considering the "Locus Regit Actum" rule as a
facultative rule.
The Egyptian legislator opted for the modern
philosophy. This can be induced for the facility which has
been granted to the Egyptian judge to apply the law
which applicable to the substance, or the law applicable

to the common domicile of the contracting parties, or

their law of common nationality, which ever validates the
transaction, i.e. Lex Validatus. Therefore, The Egyptian
positive rule applicable to formality is not as the rest of
the traditional conflict of law rues, neutral. It is rather of a
material objective.
4- What is meant by the concept of formality?
Distinction between "substance" and "formality"
can be of no importance when the contracting parties
satisfy the formality requirements provided for under the
law applicable to "substance". However, the applicable
law to "substance" can different than that which is
applicable to "formality", hence it is useful to highlight
the criterion by which distinction is made between these
different matters.
(a) Matters excluded from formalities
i- Matters of procedure.
The dominant doctrine differentiates between the
concept of "formality" and "matters of procedure".
Matters of procedure contain the required procedures for
filing a lawsuit before the court which relates to the
judicial authority of the state while formality is concerned
with the actives of the individuals. Although both
formality and procedure may eventually be subject to the
same law, i.e. the law which is applicable at the place of
the procedure and the law applicable at the place where
the transaction is created, only formality can be subject to
another applicable law. The "Locus Regit Actum" rule is
facultative rule but procedure cannot be subject to other
law other than that of the place of procedure., i.e. the Lex
5

Fori, because it is mandatory to follow that law in all

matters relating to the filing a lawsuit before the court.
ii-Matters of Publicity
By the same token, matters of publicity are
different than matters of formality. Publicity is required
sometimes for the creation of rights such as the case with
principal in rem rights (e.g. ownership) and sometimes
publicity is required for the enforcement of the right
against third parties as in the case with accessory in rim
rights (e.g. pledge). Though matters can be subject to the
same law i.e. the applicable law at the place of publicity
(publicity) and law at the place of the creation of the
transaction (formality). Only formality can be subject to
another applicable law, because it is subject to a
facultative rule. Nevertheless, publicity cannot be subject
other law that the applicable law at the place of publicity,
because this is a public rule of a territorial application.
(b) Matters which fall into the concept for
formality.
Formality is the means by which the will is
expressed to the external world. Such means can be
required for the creation of the transaction or its evidence.
(i) Formality for Creation
Laws may require the satisfaction of certain
formalities for the creation of certain transactions as in
the case of the contract of donation of an immovable
property and the contract of pledge. According to some
scholars the decision of determining whether the
formability is necessary for the creation of the transaction

or as evidence should be left to the Lex Causae. Such

interpretation finds support in Egypt in the explanatory
memorandum of the Civil Code.
The explanatory memorandum of the Civil Code
said that "... it should be take into consideration that the
scope of the law applicable to formality.... covers only
elements of external formality, however, essential mattes
of formality, and determining the essential elements for
creation of the transaction as in authentication and
security-pledge are subject to nothing but the law
applicable to the settlement of the transactions in
substance.."3
Therefore, recourse has to be made to the law
applicable to matters of "substance" in order to decide
whether authentication is required for the creation of the
transaction or not. If such authentication is required it
should be satisfied even if it is not required by the law at
the place of creation of the transaction. However, the
place of creation of the transaction will decide the way
according to which authentication should be satisfied. As
a result, the concept of formality will be restricted to a
narrow concept to contain what the explanatory
memorandum called "essential matters", i.e. the question
whether formality is required for the creation of the
transaction or not.
Nevertheless, the above mentioned doctrine is
criticized by some Egyptian scholars who argue for full
recourse to the law applicable at the place of the creation
of the transaction for determining whether authentication
is an essential element for creating the transaction or not.
3

See Collection of Act Prparatoires, Part I , 269

Their arguments are based upon the philosophy of

facilitation which constitutes the modern background for
the place of creation of the transaction. First, why should
we burden the parties with authentication required by the
law of substance while the law at the place of the creation
of the transaction does not require such element?
Second, the parties may be ignorant of the rules of
formality under the applicable law to the "substance"
while they are aware only of the formality requirements
at the place of transaction. Third, the other doctrine
render the "Locus Regit Actum" rule idle, because if we
restrict the parties choice of law to the application of the
formalities provided by the law of "substance" what shall
be left to the place of creation of the transaction. Fourth,
what if the law of "substance" required a particular
formality which cannot be satisfied in places other than
the place of that law e.g. interference of a particular
official clerk? Does not this lead to an impossible
creation of the transaction at places other than the place to
which the law "substance" pertains?
Consequently, adopting of a wide concept of
formality is required to the extent of including the
question of whether particular formality is required or
not. Such a doctrine fits the requirements of facilitation
and which are vital for international transactions. Hence,
if the law of "substance" requires an authentic formality
but the law at the place of the creation of the transaction
does not require more than the existence of a customary
formality then satisfaction of the latter law will suffice.
(ii) Formality for evidence

The majority of the Egyptian scholars agree to the

application of the "Locus Regit Actum" rule to the
question of whether documentary evidence is required for
the proof of the existence of a certain transaction, and the
probative authority of the different means of evidence.
Therefore, if the law at the place of the transaction does
not require documentary evidence while the applicable
law to the transaction's substance requires such evidence
then the transaction may be proved by testimonial
evidence.
Some of the Egyptian scholars argue for releasing
the parties form the required documentary evidence
provided for by the applicable law at the place of creation
of the transaction if the Lex Loci does not require such
type of evidence. Those scholars relay on the modern
philosophy of the "Locus Regit Actum" rule which is
facilitation of transactions.
Section Two : Conflict of Laws in Personal Status
1- Introduction
The treatment of the Egyptian statutory rules
for conflict of laws in matters related o persons requires
the discussion of the following: the preliminary topics,
marriage, capacity, heritage and will. We shall devote to
each of these topics a distinct subsection.
2-Plan
Subsection One : Introductory issues
Subsection Two: Marriage
Subsection Three: Capacity
9

Subsection Four: Inheritance and Will

Subsection One: Introductory Issues
The Egyptian Quest to Independence & the
Abolishment of Foreign Capitulations
Before examining the choice of law rules on
Personal Status it is important for us to understand the
historical background of those rules to highlight some of
the above rules' unique aspects. During the period from
the sixteenth century up to the nineteenth century the
Mamluk and the Ottoman Empire resort to signing trade
treaties with European and other Western powers to
facilitate trade and entry of foreigner into Egypt and the
adjourning provinces. This was a part of development
strategy that aimed at encourage foreign investment.
Nonetheless, the European and other Western
powers were interested in establishing a foothold in the
region through the direct presence of their subjects and
direct engagement of foreign firms in the day to day
economic activity. Knowing that the Ottoman Empire
was already facing dare economic situations, hence it was
called "Europe's Sick Man", the Western powers
demanded that their subjects receive preferential
treatment vis-a-vis the local government. The foreigners
were not subject to local law nor local courts but they
were accountable only to consular courts established by
their states. This preferential treatment included the
establishment of a system known as "Foreign
Capitulations".
In Egypt foreign capitulations were inherited from
the Ottoman Empire. However, after the British Invasion
10

of Egypt in 1882 there were fears among other European

States that the British will move to abolish the foreign
capitulations enjoyed by their subjects as a part of a
British plan to consolidate their power in Egypt. Using
their influence through their subjects, who were the
creditors of Egypt's sovereign debt, the European powers
succeeded in establishing the Mixed Courts System in
align with the National Court System.
The Mixed Court System was in fact a judicial
body composed of several courts organized in a
hierarchy. The panels in those courts consisted only of
foreigner judges. The Mixed Court was competent to hear
cases where the plaintiff was a foreigner and applied the
Mixed Civil Code that did not contain choice of law
rules. On the other hand, the National Courts were only
competent to hear a case when both parties are Egyptians
and applied only the National Civil Code. Therefore,
under the dual court system choice of law situations were
only possible before the Mixed Courts. The Mixed
Court's Council later on issued a set of procedural rules,
known are the "Rglement d'organisation judiciaire mixte
" which contained, ironically, the choice of law rules to
be used by the Mixed Courts.
This state of affairs was not acceptable to the
patriotic forces in Egypt and foreign capitulations,
especially the Dual Court System, was a daily reminder to
all Egyptians that their country was not independent and
it is subject to foreign dominance. Thus, it was a share
view among all political powers around the political
spectrum in Egypt that the foreign capitulations must
come to an end.

11

It was not until 1936 when the United Kingdom

sought to reach an agreement with the Patriotic Egyptian
forces in order to answer some of their demands. The
United Kingdom wanted to assure its position in Egypt
ahead of an escalating military confrontation with Nazi
Germany. As a result, both parties signed the AngloEgyptian Friendship treaty that explicitly called upon the
abolishment of the Foreign Capitulations.
The United Kingdom mobilized its diplomacy to
set out a conference held at Montreux, Switzerland in
1937. In that conference the foreign states that enjoyed
foreign capitulations expressed their concerns for the
future welfare of their citizens after the planned
abolishment of the Mixed Courts System. In particular,
the above states sought to have assurances that their
subjects will not be governed by Islamic Shariah when an
Egyptian Court faces choice of law situation involving a
foreign party.
In order, to easy their worries the Egyptian
Government did give the following assurances. First, as a
general rule it was agreed that the concept of "Personal
Status" as defined in Article 28 of the Rglement
d'organisation judiciaire mixte will be retained. This
allowed the application of foreign personal law to issues
that are generally not considered a part of the "Personal
Status" as it is understood under most Western choice of
law doctrines such as inheritance, wills and other
dispositions mortis causa.
Second, the Egyptian Government has agreed to
retain the same choice of law rules that were included in
Article 29 of the Rglement d'organisation judiciaire

12

mixte4 through incorporating the same choice of law rules

into the New Egyptian Civil Code promulgated in 19485.
4

Art 10 of Montreux Convention 1937 stated that " In matters of personal status,
the statewhich is competent shall be determined by the law to be applied. The
expression "personal status" refers to the matters specified in Article 28 of
the Rglement d'organisation judiciaire mixte. The law to be applied shall be
ascertained in conformity with the rules set out in Articles 29 and 30 of the
said Rglement".

Art 29 of the Reglement stated the following Choice of law rules:

The status and capacity of persons shall be governed by their national laws.
The fundamental conditions of the validity of marriage shall be governed by the
national law of each of the parties thereto.
In matters concerning relations between the husband and wife, including
separation, divorce and repudiation and the effects thereof upon their property,
the law to be applied shall be the national law of the husband at the time of the
celebration of the marriage.
Reciprocal rights and duties as between parents and children shall be governed
by the national law of the father.
The duty of support shall be governed by the national law of the party sought to
be charged therewith.
Matters relating to legitimacy, legitimisation, and the recognition and repudiation
of paternity shall be governed by the national law of the father.
Questions relating to the validity of adoption shall be governed by the national
law of the adopting party as well as by that of the adopted person. The effects of
adoption shall be governed by the national law of the adopting party.
Guardianship, curatorship and emancipation shall be governed by the national
law of the person under the incapacity.
Inheritance and wills shall be governed by the national law of the deceased or of
the testator.

13

The Egyptian government even agreed to express state

the rejection of the Renvoi in order to prevent the
Egyptian Courts form using the foreign choice of rules
that uses the domicile as a connecting criterion for
personal status choice of law rules as a means to apply
Islamic Sharia law on lawsuits involving foreigners6.
Thus, the will be no change in the foreigners' legal status
before or after the abolishment of the Mixed Courts
because the same issues governed by their personal law
will continue to be governed by the same law in the
future.
The third assurance given by the Egyptian
government is the adoption the "personal law" as a
connecting criterion for all future legislations that affect
the personal status of the foreigners. This continuous
assurance was meant to address the foreign states'
concern that the Egyptian Government might seize the
opportunity after the abolishment of the foreign
capitulations and enact new choice of law rules that might
lead to the application of the Islamic Shariah on
foreigners7.
Gifts shall be governed by the national law of the donor at the time of the gift.
The rules of the present Article shall not affect provisions relating to the legal
position of immovable property in Egypt.

This was done by incorporating Art 31 of the Reglement "The term "national
law" shall be understood to mean the municipal law of the country in question to
the exclusion of its provisions of private international law " into the Egyptian
Civil Code.
7
DECLARATION BY THE ROYAL EGYPTIAN GOVERNMENT
"The undersigned, acting in virtue of their full powers, make the following
declaration:...............

14

1- The Concept of " Personal Status "

As we have seen earlier, the concept of "Personal Status"
under Egyptian choice of law rules is an enlarged concept
unlike that adopted under other choice of law rules.
According to the Article 28 of the Rglement
d'organisation judiciaire mixte Personal Status include"
suits and matters relating to the status and capacity of
persons, legal relations between members of a family, more
particularly betrothal, marriage, the reciprocal rights and
duties of husband and wife, dowry and their rights of
property during marriage, divorce, repudiation, separation,
legitimacy, recognition and repudiation of paternity, the
relation between ascendants and descendants, the duty of
support as between relatives by blood or marriage,
legitimization, adoption, guardianship, curatorship,
interdiction, emancipation and also gifts, inheritance, wills
and other dispositions mortis causa, absence and the
presumption of death."
This enlarged definition of "Personal Status" drove
some scholars to suggest replacing the term "Personal
Status" with "Personal Status" in order to reflect the true
3. PERSONAL STATUS
The Royal Egyptian Government, having already, and more particularly in the
Establishment Treaties which it has concluded with Iran and Turkey,
spontaneously adopted the principle that, in matters of personal status, the
personal law should apply, intends to adopt the same principle with regard
thereto in the future.
As regards the rules of procedure, which the Royal Egyptian Government intends
to enact for cases of personal status, these will be applied provided that no
substantive rule of the foreign national law prevents their application."

15

meaning of the concept. Personally, I find that such

alteration is not necessary since as we have seen earlier
on the characterization of any concept used in the
Egyptian choice of law rules is done according to the
Egyptian law.
2- Applicable Law to "Personal Status "
Personal Status is governed by the personal law (
Lex Personae). In most Common Law jurisdictions Lex
Personae is the law of domicile (Lex Domicilii) while in
most of the Civil Law jurisdictions it is the law of
nationality (Lex Patriae). The domicile is the place in
which a person has voluntarily fixed his residence while
nationality is the individual's allegiance to a particular
state.
As we have seen the concept of Personal Status is
defined under Egyptian Law according to the Montreux
Convention 1937. This same thing applies the selection of
personal law as a connecting criterion for the choice of
law rules used by the Egyptian Legislator designed the
Personal Status choice of law rules.
An Appraisal of the Lex Patriae
As we have seen earlier, the foreign states agreed
with the Egyptian Government to use Lex Patriae as a
choice of law criterion. This in turn, drives us to evaluate
how suitable was the choice of Lex Patriae as a choice of
law criterion.
(a) The Advantages of Lex Patriae
Lex Patriae as a choice of law criterion has two
main advantages. First, it is easily ascertainable because a
16

person's nationality is usually officially documented

either through the person's possession of a passport or
other equivalent documents such as birth certificates,
school records, etc. The Judge does not have to conduct
an extensive investigation, which is usually needed to
determine a person's domicile, to determine a person's
nationality. This saves the Court time and effort allowing
it to deal with the issue swiftly before examining the
substantive aspects of the dispute.
Second, a change of nationality is usually well
evidenced since a person normally cannot change his
nationality without recourse to a set of official procedures
that will produce official documents to establish the
occurred change of nationality.
Nonetheless, the application of Lex Partriae can be
criticized for the following: First, as a result of increase
social mobility it is now uncommon to find persons who
hold dual nationalities. This could be the outcome of
deliberate immigration form one state to another or the
person himself was the product of a mixed marriage. In
the latter case, the child may receive two nationalities, his
mother's nationality and his father's nationality8. In
addition, if the person is born in state that encourages
immigration he will receive that state's nationality as
well.
Second, it is possible that the person in question
belongs to a state that contains several distinct legal units
and the test of nationality may not, by itself, give us an
8

This is now possible under the Egyptian Nationality Law which gives the right
to pass the Egyptian nationality to the children of an Egyptian parent whether
that parent is the child's mother or father. See Law no 154/2004.

17

answer. Some jurisdictions follow a federal system which

leaves some areas of the law for the federal units to
regulate such as family law in the United States. Using
Lex Partriae will cause the Court to conduct an extensive
search over the applicable law. However, the Egyptian
Legislator has provided us with a solution which is to
delegate the matter to the internal choice of law rules in
that Jurisdiction.
The third, as is all too obvious today a person may be
stateless either as a result of being a member of a society
that does not adopt documentation as a means for
recording data or being an illegal alien who deliberately
concealed his identity.
(b) Difficulties in Ascertaining Nationality
Resort to Lex Partriae can be difficult. This takes
place in cases of multinational persons, stateless persons
and persons without a know nationality.
(i) Multinational Persons
In case that the person in question has the Egyptian
nationality among other nationalities that he pertains then
the Egyptian nationality will prevail over those
nationalities according to Art 25 (2) of the Civil Code.
However, if the Egyptian nationality is not among other
nationalities that a person pertains then we will resort to
the de facto nationality. This is the solution adopted by
the International Court of Justice (April 6, 1955).
A de facto nationality can be ascertained through
several elements such as the person's domicile, interest,
social relations, his participation in public affairs and his

18

intentions. The explanatory memorandum of the Egyptian

Civil Code supports such solution. The determination of
the de facto nationality is a fact left to the court to decide
(trial courts and the appellate courts). However, we
support granting the Court of Cassation the authority to
review the lower court's findings on the de facto
nationality.
(ii) Stateless Persons and Persons without Known
Nationality.
If the person in question is stateless i.e. he does not
enjoy a nationality of a state or his nationality is unknown
then his personal law will be the law of the place to which
the person has the closest connection. This usually turns
out to be the law of domicile. If it was difficult to
determine the person's domicile, recourse will be made to
his place of residence. This solution finds support in the
explanatory memorandum of the Civil Code.

19

Subsection Two Marriage:

1- Introduction
Marriage is a status conferred by the law upon a
union between a man and a woman whereby they assume
certain rights and duties. Treatment of conflict of laws in
matters of marriage requires determination of the
applicable law to the marriage's conclusion, effects,
nullity and dissolution. In addition, the treatment of the
exceptional application of the Egyptian law to the
marriage contract will be relevant. Therefore, this
subsection will be divided into the following headings:
i- The Validity of the Contract of Marriage
ii-Effects of Marriage
iii- Nullity of Marriage
iv-Dissolution of Marriage
v-Exception application of the Egyptian Law
Heading One: The Validity of the Contract of
Marriage
(a) Formal Validity
According to Egyptian law the formal aspects of
marriage are like any other formality governed by Art(20)
of the Civil Code. In pursue of Art(20) formality is valid
according to any of the following laws: the law of the
state in which the contract made, the law applicable to
matters of substance, the law of the common domicile of
the contracting parties or the law of their common
nationality. Since that the substantive aspects of the
20

marriage are governed by the law of the common

nationality of the spouses then the connecting factors for
the formal aspects of the marriage are: the law of the
place of conclusion, the law of the common nationality
of the spouses and the law of the common domicile.
The Place
Celebrationis)

of

Conclusion

Lex

Loci

Marriage is formally valid if it is made according

to the formality requirements at the place where the
marriage was concluded. In such a case the marriage had
satisfied the local formality. The Egyptian law recognizes
many types of local formality for valid marriages.
The first type is the official formality and it is made
through the interference of a public official. Here we
have several different forms for the marriage depending
on the spouses' nationality and their faith. In case of
marriage between Egyptian Muslims the public official is
the Mazoon, while in the case of Egyptian Non-Muslims
sharing the same sect and denomination the official clerk
is the deputized authenticator. Foreigners and Egyptian
Non-Muslims who do not share the same sect and
denomination satisfy the official formality by recourse by
the public notary.
The second type of formality for marriage in Egypt
is the Islamic customary. However, satisfaction of the
Islamic customary formality is still disadvantageous since
that is does not proved the spouses with the same rights
and duties as in the formal marriage.
Therefore, marriage between foreigners in Egypt is
formally valid as long as it is made in accordance with
21

the official or the customary types of formality for

marriage in Egypt. By the same token marriage between
Egyptians taking place abroad is formally valid if it is
made in accordance with the formality requirements at
the place of the marriage. However, purely non-Muslim
and religious formality is not valid in case of a marriage
between Muslim spouses or in case the husband is
Muslim.
The Law of the Common Nationality
In addition to the local formality, the marriage can
be formally valid if it satisfies the formality requirements
under the law of the common nationality of the spouses.
If the spouses do not share the same nationality then the
formality requirements of the nationality laws of both
spouses must be satisfied.
Diplomatic or consular formality is considered
among the national forms. As a result, the marriage made
by foreigners in Egypt or by Egyptians abroad is valid
when it is made at their authorized embassy or consulate.
If one of the spouses is Egyptian the consular formality
by the Egyptian consulate abroad prerequisites
permission by the Foreign Minister ( Art (16) of the
Decree by law 8/5/1925). The Egyptian Consular service
is available to all Egyptians regardless of their faith.
The Law of the Common Domicile
Formal aspects of marriage can be valid if they
satisfy the legal requirement at the law of the spouses'
common domicile. Therefore, foreigners domiciled in
Egypt can validly conclude marriage in accordance with

22

the Egyptian official or customary forms even if they

were accidently residing outside Egypt.

Legal Category of the Contract of Marriage

Formal Validity
The Lex Fori determines what constitutes formality
in the contract of marriage because it is a matter of
characterization. According to the dominate Egyptian
doctrine the Egyptian Lex Fori which will decide the
formal aspects is the Islamic law because it is the
common law in matters of marriage.
According to our general legal rules formality is
whatever affects the expression of the person's will to the
external world. It is worth to remind the reader that we
have previously supported leaving the determination of
formality as necessary prerequisite for the creation of the
transaction to the law applicable to the formal aspects of
the transaction.
Consequently, the witness requirement is a formal
aspect of the marriage because it not related to the
consent to enter into the marriage but it is related to the
publicity of the ceremony. Also, due to the civil aspect of
marriage under Islamic Sharia the applicable law in Egypt
the religious ceremony is considered among the formal
aspects of the marriage.
However, the requirement of the parent's consent to
their minors' marriage is a substantive issue because it
completes the minor's consent. The evidence of marriage
is subject to the law applicable to the formal aspects of

23

the marriage. Namely, this law will be applicable to the

required means of evidence for establishing the existence
of the marriage and it will determine the probative power
of each means of proof.
(b) Substantive Validity of the Contract of
Marriage
The Connecting Factor
The validity of the substantive aspects of the
marriage is left to the spouses' law of the common
nationality. There will be no problem for the application
of this rule of law in case both spouses enjoy the same
nationality. The problem is when the spouses do not share
the same nationality. Shall the spouse' law of common
nationality mean that the court should apply the laws of
both spouses cumulatively? or shall the court resort to
distributive application of the spouses laws by applying
the requirements of each spouse's law to that spouse
only?
Cumulative application was suggested as a means
for protecting the martial relation. However, modern
doctrine supports distributive application; this avoids the
application of a combination of the legal requirements
that may end up by being more severe than those of any
of the spouses' laws. We support the modern doctrine;
however we should confess that sometimes the
distributive application will not be possible as in the case
for the prohibitions and other forms of negative
requirements which is usually called 'martial
forbiddances". For example, observance of a prohibition
against marriage between spouses of different creeds in

24

one spouse's personal law requires its application to the

other spouse even if the other spouse's law does not
recognize such negative requirement.
Legal Category
What is considered as a substantive aspect is a
question left to the law applicable to matters of
characterization the Lex Fori. As we have suggested
before, the Egyptian law will be the which determines
what is considered a formal aspect of the marriage and
what is considered a substantive aspect of the marriage.
We remind the reader that we have concluded that
witness requirement and religious ceremony to be among
the formal aspects of the marriage. However, the essential
elements for the contract of marriage are left to the
concept of matters of substance.
Effects of the Public Policy
When the applicable foreign law is against the
Egyptian public policy then the Egyptian judge will not
apply it. Foreign laws applicable to the substantive
aspects of marriage are the most vulnerable laws to such
alienation due to their highly possible conflict with
Islamic Sharia which constitutes the basics of the public
policy in Egypt. As an example, our mandatory Islamic
law rules do not allow a female Muslim to marry a nonMuslim male.
It is to be noted that public policy is operative only
with foreign Muslims or an Egyptian Muslim who got
nationalized after marriage. According to the Egyptian
conflict of law rules, Art 14 as we shall see later on, if
one of the spouses is an Egyptian at the time the marriage
25

was concluded that the substantive aspects of that

marriage will be governed by the Egyptian law.
Heading Two : The Effects of Marriage
Connecting Factor
According to Egyptian law Art13 "... the effects of
marriage, including its effects upon the property of the
spouses, are regulated by the law of the country to which
the husband belongs at the time of the conclusion of the
marriage...". Therefore, the connecting factor for the
effects of the marriage is the nationality of the husband at
the time of concluding the marriage. This means that we
have adopted one law to govern the effects of the
marriage to avoid the problematic consequences of the
distributive and cumulative application of the spouse's
personal laws.
The national law of the husband is supported by the
fact that the husband is the master of the family. It is
worth to mention that the Egyptian legislator has adopted
the application of the national law of the husband at the
time of the conclusion of the marriage. In choosing such a
moment for determining the applicable law the Egyptian
legislator conclusively solved the problem of the mobile
conflict which takes place when the husband changes his
nationality at the time he files a lawsuit.
The positive solution that the Egyptian legislator
adopted here was found unconstitutional in other
countries. In Germany, such solution was ruled to be in
violation with the principle of equality between women
and men. Other suggested connecting factor is the
application of the law of the matrimonial domicile.
26

Legal Category
The legal category of effects of marriage includes
two different groups, the personal and pecuniary effects
of the marriage.
(a) Personal Effects of Marriage
Personal effects of marriage may be purely
personal and may include certain pecuniary aspects.
Purely personal effects of marriage include the wife's
obligation to obey her husband, to be present at the
marital domicile and the service to husband and children.
Also they may include the husband's duty to act justly
among his wives, if polygamous marriages were
permitted, and the wife's right to hold the family name of
her husband.
However, the personal effects that contain some
pecuniary aspects include the right of the wife to her
dower, and the right of each spouse to matrimonial
alimony. They also include the payment of damages to
the other spouse to the other spouse in case of breach of
the contract of marriage.
Nevertheless, the alimony pendete lite paid to the
wife is subject to the Lex Fori. An alimony pendete lite is
a temporary alimony, which a husband by a court order
pays his wife for maintenance while the spouses are
pending a suit for divorce. Such alimony is established
for the conservation of public safety and order in the
community, and therefore its rules of law are directly
applicable regardless to the connected foreign laws to
marriage. Actually such rules of law belong to the
mandatory rules of law.
27

According to the dominant doctrine, the wife's lack

of capacity subsequent to her marriage is considered as an
effect of marriage. This characterization is based on the
fact that such lack of capacity is not established for the
protection of the wife but rather for the protection of the
family. Therefore, such lack of capacity will be subject to
the law of the family's master, the husband. Nevertheless,
the Egyptian trade law 17/1999 adopted the wife's law of
nationality to determine her capacity to trade. According
to Art 14 "... the law of state to which a married woman
belongs by her nationality shall regulate her capacity to
trade.."
Nevertheless, in order protect bona fide persons
trading with foreign married businesswomen Art 14 (2) of
the Egyptian Commercial code provides that "A Foreign
wife exercising trade as a profession shall be assumed to
be exercising it with her husband's permission. If the
applicable law allows the husband to object to her
exercise of trade as a profession, or withdrawals his
previous permission then that permission shall be
recorded in the register of trade and shall be published in
the register's journal. The objection or withdrawal of
permission shall have no effect except form the date of
completing such publication..."Besides, ".. The objection
or withdrawal of the permission shall not affect the
acquired rights by the bona fide party...."
(b) Pecuniary Effects of the Marriage
We mean with 'pecuniary effects of the marriage',
the matrimonial regime recognized by certain legal
systems, as in the French system of rgime matrimonial.
By virtue of this legal system the spouses will arrange the

28

system by which their matrimonial estate will be

organized, before, through and after marriage. The
matrimonial regime is unknown to the Egyptian laws
(whether the laws applicable to Muslims or those which
are applicable to non-Muslims). This explain the
Egyptian legislator's adoption of a legislative
qualification for such concept.
According to Egyptian law, in principle, the
matrimonial regime is subject to the law applicable to the
effects of marriage, i.e. the national law of the husband at
the conclusion of the marriage. However, the abovementioned rule is restricted by the obligatory respect of
the law of the place of the property, the Lex Rei Sitae.
The Lex Rei Sitae is applicable to possession, ownership
and other rights in rem on the matrimonial regime
regardless of the husband's national law.
In addition, bona fide third parties should not be
harmed by the application of the husband's law to the
matrimonial regime. In this context art 15 (1) of the
Egyptian trade code provides that " ....A foreign wife
practicing trade shall be supposed to have got married
according to a the system of separation of estates unless
otherwise stipulated by the terms of the pecuniary
agreement between both spouses...".In order to support
the publication of the peculiar aspects of the matrimonial
regime art 15 (2) provides that ".... the terms of pecuniary
agreement between the two spouses shall not be invoked
against third parties except after its notarization by
recording it in the register of trade and publishing its
summary in the register's journal.."

29

However, the bona fide third party should not be

harmed by the fact of not publishing a suitable
matrimonial regime to his interests. Therefore, the
Egyptian trade code provides that "...in case of neglecting
the publication of the pecuniary terms of agreement
between the two spouses, the third party may prove that
the marriage had taken place according to a matrimonial
regime more suited to his interests than the system of
separation of estates". Also, according to art 15 (4) "...a
court ruling pronounced abroad concerning the separation
of estates shall not be invoked except from the date of
recording it in the register of trade and publishing its
summary in the register's journal.."
Contracts between Spouses
Besides the matrimonial regime which is subject to
the applicable law to the effects of marriage, there are
other pecuniary transactions between the spouses and
which may take the form of sales, hire, donation and
matrimonial companies i.e. contracts between spouses.
Some of the scholars supports subjecting the contracts
between spouses to the law of autonomy as in the case
with any other contractual relationship. Nonetheless, we
support applying the law governing the matrimonial
regime to those contracts especially when such law
imposes restrictions on contracts between spouses. These
restrictions should be observed because they were laid
down for the purpose of protecting the matrimonial
relationship.

30

Heading Three Nullity of Marriage

1-Applicable Law
It happens that a formal or a substantive
requirement for the marriage may not be satisfied and
subsequently the marriage will be considered null and
void. The question is which law shall decide the effects of
such nullity? According to the dominant doctrine the
nullity of the marriage is subject to the law whose
requirements were not fulfilled. Therefore, in order for a
marriage to be considered as a null under the Egyptian
private international law it must not fulfill the
requirements of either the law governing the formality of
the marriage or the law governing the substance of the
marriage , which called the essential elements in English
law.
2-Effects of the Nullity of Marriage and
Matrimonium Putativum
In principle when a marriage is judicially declared
null it will be considered as if it did not exist. However,
some legal systems do not apply the nullity effect
retroactively and they do tolerate some of the legal effects
generated by the null marriage. Such toleration is
required to protect the good faith of one of the spouses
and the rights of the children resulted from the null
marriage. In such a case the null marriage will be
considered as a valid marriage in the period preceding the
declaration of nullity. This is known as Matrimonium
Putativum. Nevertheless, the question is to what law will
govern the Matrimonium Putativum?

31

According to the dominant doctrine Matrimonium

Putativum is governed by the same law that led to the
nullity of the marriage because Matrimonium Putativum
is an effect of nullity. However, the logical base of the
above mentioned doctrine is not sufficient to overcome
the practical obstacles such as in case if the nullity of the
marriage was caused by the national law of both spouses
who do not share a common nationality. Therefore, we
prefer to characterize the concept of Matrimonium
Putativum as a matter related to the effects of marriage
and apply the husband's national law at the time the
marriage was concluded. It is worthy to mention that the
concept Matrimonium Putativum is regarded as a matter
of public policy and if the husband's national law does not
recognize such a concept then that law will be substituted
with the forum's law.
Heading Four : Dissolution of Marriage
1-Connecting Factor
According to art 13 (2) of the Egyptian Civil Code
: "...Repudiation of the marriage is governed by the law
of the state to which the husband belongs at the time of
repudiation, whereas divorce and separation are governed
by the law of the state to with the husband belongs to at
the date of initiating the proceedings...". Dissolution of
the marriage is recognized by the Egyptian legal system
and it may take one of the following forms: repudiation,
divorce, separation.
Repudiation is the voluntary dissolution of the
marriage and it is non-judicial because it is made by an
informal procedure conducted outside the courts. Under

32

Islamic shaira a husband may be able to divorce his wife

by uttering the work "talaq" with the intention of
dissolving the marriage. However, divorce or more
particularly divorce by decree is a dissolution of the
marriage after a judicial interference.
Separation or divorce a mensa et thoro is the
dissolution of the marriage by which the spouses are
separated and forbidden to live and cohabit together,
without affecting the marriage itself. This is why such
type of dissolution is sometimes qualified as being a
divorce for bed and bread.
The applicable law to the marriage's dissolution is
the law of the husband, and unlike the effects of the
marriage it is the law of the husband at the moment of
repudiation and it is his law at the time of lodging his
lawsuit in case of divorce or separation unlike the effects
of the marriage. The above mentioned connecting factor
has been criticized for allowing the wife to be taken by
surprise due to the husband's change of nationality at the
time of the repudiation or at the time of lodging the
lawsuit in case of divorce or separation.
It is true that the change of the connecting factors
with the intention to curtail illegal the applicable law is
considered fraud upon law and it is punished but such
fraud is sometimes difficult to prove. In addition, the
above mentioned connecting factor does not observe the
principle of equality between women and men. Therefore,
some legal systems adopted other connecting factors such
as the German legal system which adopted the place of
matrimonial domicile.

33

2- Legal Category
The Legal Category of dissolving the marriage
includes: conditions for dissolution, its consequences and
procedure.
Conditions of Dissolution
The legal category of the dissolution of marriage
includes its legal conditions e.g. who can seek the
dissolution, the grounds for dissolution, the burden of
proof, the means of proof and its probative power.
However, the procedure for presenting the proof before
the court is subject to the forum's law because it is a
matter of procedure. Also, determining what constitute a
repudiation, divorce or separation is governed by forum's
law because it is a matter of characterization
Consequences of Dissolution
The legal category of the marriage's dissolution
also includes the consequences of the dissolution and
namely its personal consequences. The personal
consequences of the marriage dissolution include the
divorced wife's alimony , the divorced wife's domicile,
the preceding period of separation which is converted into
divorce, the divorced wife's right to keep her exhusband's family name and the right to receive damages
for breach of contract of marriage.
However, the pecuniary consequences of the
marriage dissolution, the matrimonial regime,
are
excluded from the effects of the dissolution and they
belong to the pecuniary effects of the marriage which is

34

governed by the husband's law of nationality at the time

of concluding the marriage.
Excluded Matters: Procedures for Dissolution
The procedural matters are governed by the forum's
law, the Egyptian law, according to art (22) of the
Egyptian Civil Code which states that "... all questions of
procedure are governed by the law of the statein which
the lawsuit is brought or in the statein with the
proceedings are taken place..." However, some laws
requires religious or legislative interference in order to
obtain divorce. Though characterization of such matter is
left to the forum's law the modern doctrine characterize
such interference as procedures subject to the forum's
law.
Sometimes interlocutory procedures takes place
during the divorce or separation lawsuit such as
temporarily alimony , alimony pendete lite, residence of
with and her receipt of daily support property. These
matters are directly subject to the forum's law because
they fall into the scope of the forum's law mandatory
rules.
Effects of Public Policy on Dissolution of
Marriage
The applicable foreign laws in matters of
dissolving the marriage which contradicts with the
Islamic sharia are not necessarily against the public
policy in Egypt. This is a normal consequence of the
Egyptian recognition for the application of other religious
rules to matter of persons. However, Islamic sharia as an
ingredient of the Egyptian public policy may be engaged
35

if the applicable foreign law does not recognize the

foreign Muslim right to divorce under the Islamic sharia.
Therefore, a foreign Muslim husband enjoys in Egypt the
right of informal repudiation , Talaq, even if he does not
have that rigth under his own personal law because in this
case his personal law will contradict with the Islamic
sharia.
Heading Five : The Exceptional Application of
the Egyptian Law
1-Legal Provision
After establishing the rules of the conflict of laws
in matters of conclusion, effects and dissolution of the
marriage, Art 12; 13;14 of the Egyptian Civil Code, the
Egyptian legislator declared a general exception by which
the Egyptian law will be applicable if one the spouses
was Egyptian at the date of marriage. Art 14 provides that
".... if in the dispute one of the spouses was an Egyptian
at the time of concluding the marriage then the Egyptian
law alone shall apply except as regards to the legal
capacity to marry...."
2- Exception To Substantive Aspects of the
marriage
According to the Egyptian rule of the conflict of
laws in substantive aspects of the marriage the applicable
law is the national law of both spouses. This exception
means that if one of the spouses was Egyptian when the
marriage was concluded then the Egyptian law will be the
only applicable law. The preparatory works of the
Egyptian Civil code revealed that there was a concern
about the nullity of a marriage concluded between an
36

Egyptian husband and a foreign non-Muslim wife if the

latter denied the validity of that marriage.
The above mentioned precaution is criticized for
providing an unnecessary protective mechanism. The
protection provided by the public policy defense is
sufficient because it will allow the Egyptian court to
disregard the foreign non-Muslim wife's personal law if it
contradicts the Islamic Sharia. Additionally,
the
exception does not protect all Egyptians. It protects only
those who enjoy the Egyptian nationality before
concluding the marriage but not those who acquired the
Egyptian nationality after concluding the marriage.
Ironically, this exception provides protections to those
who enjoyed the Egyptian nationality at the time their
marriage was concluded and lost it subsequently!!!
Needless to say that the application of the Egyptian
law does not necessarily mean that the Islamic sharia will
be applied. the Egyptian legal system recognizes the
application of the dual religious rules of non-Muslim
spouse if either one enjoys the Egyptian nationality and
both shared the same sect and denomination.
3- Exception to the Effects of the Marriage
The effects of the marriage is governed according
to Art 13 (1) by the husband's personal law at the time the
marriage is concluded. As a result, the exception is not
applicable unless the wife was an Egyptian when the
marriage was concluded. The rasion d' etre behind this
exception was to unify the laws that governs the marriage
substantive aspect and effects. However, this exception is
criticized because wives who acquired the Egyptian

37

nationality after the conclusion of their marriage will not

be eligible to use this exception
4- Exception to the Dissolution of the Marriage
This exception means that the application of the
Egyptian law will be applied if either spouse was an
Egyptian when the marriage was concluded regardless of
their nationality when the repudiation or the dissolution
proceedings were initiated
Section Three: Capacity
1-Legal Provision
According to Art 11 of the Egyptian Civil Code:
"... the status and the capacity of persons are governed by
the law of the state to which they belong by reason of
their nationality. However, if one of the parties in a
transaction of a pecuniary nature, which is concluded and
has effect in Egypt was a foreigner lacking capacity due
to a reason that is not apparent and which cannot be
easily detected by the other party than this reason will
have no effect on the foreigner's capacity...."
2-Connecting Factor
Capacity is subject to the national law of the person
in question. The application of the national law is
justified by the need to protect that person. The national
law in question is the person's law at the time the
transaction was created.

38

3- The Concept of "Capacity"

(a) Excluded Matters
The following matters are excluded from the
category of capacity:
a- Capacity to enjoy: which is the ability to acquire
rights and assume obligations and it is subject to the law
applicable to the right in question e.g. Lex Causae.
b- Forbiddance
incapability is subject
transaction concerned
forbidding judges and
transactions.

from disposition: or special

to the law applicable to the
with that forbiddance. e.g.
doctors from exercising certain

(b) Included Matters

The included mattes among the concept of capacity
are those which are related to the idea of capacity to
exercise which is the ability to exercise rights and assume
obligations. Therefore, these matters will include:
a-Age of majority
b-Extent of the capacity of the incapable
c-Incidents of incapacity such insanity, feeble
mindedness, prodigality and imbecile.
d-Obstacles to capacity such as absence, double or
serious disability, conviction of a felony.
A remark should be made to the fact that incidents
and obstacles of capacity are required to be declared by
court decisions. Therefore, such court decisions should be

39

recognizable and enforceable in Egypt so that it could be

given effect.
4-The Exception
(a) Lizardi Case
This is the exception was developed by the French
case Lizardi. Lizardi was a twenty three years old
Mexican who bought jewelry from a French merchant in
France. The French merchant accepted a promissory note
as a payment for the jewelry that Lizardi bought from
him. However, we the note became due Lizardi refused to
pay it and he used his incapacity under the Mexican law ,
the age of majority was 25 years under the Mexican law
at that time, as a defense against the merchant's claim for
the unpaid price. The French Cour de Cassation
recognized that it should disregard the Mexican law
because it was not acceptable to assume that a French
citizen will be aware of all the law of the world. The
court concluded that the contract of sale should remain
valid as long as it was not made recklessly. The Lizardi
case laid down a principle that protects parties with good
faith who rely on ostensible situations in order to secure
the stability of transactions in national markets.
(b) Positive Provision
The Lizardi case principle was adopted in Art 11
that states "... however, if one the parties in a transaction
of a pecuniary nature, concluded and have effects in
Egypt is a foreigner without legal capacity and such lack
of capacity is due to a reason that is not apparent one
which cannot be easily detected by the other party then

40

that reason shall have no effect on that foreigner's legal

capacity..."
(c) Requirements of the Exception
in order to use the above exception there should be
the following :
a- A pecuniary transaction
b- The transaction is concluded and produces its
effects in Egypt
c- Lack of capacity is due to an obscure reason
d-the other contracting party was acting in good
faith
(d) The Effects of the Exception
If the requirements for the exception was fulfilled
then the foreign national law will be disregarded and will
be substituted with the Egyptian law.
(e) Particularity of Capacity to Trade
The capacity to trade is determined under Egyptian
law according to Art 11 of the law 17/1999 which
provides : "...1- The following, whether Egyptian or
foreigner, shall be qualified and eligible for the exercise
of trade:
a-Once he completes twenty one years of age even
though the law of the state to which he belongs by his
nationality considers him as a minor at that age
b-Whoever reaches the age of eighteen years under
the conditions prescribed in that law of the state to which
41

he belongs by his nationality after obtaining the

permission of the competent Egyptian court.
2- A person who is less than eighteen years old
shall not exercise the profession of trade in Egypt even
though the law of the state to which he belongs to by his
nationality considers him a major or allows him to
exercise trade
3- A minor who is authorized to trade shall have
the complete legal capacity to fulfill all legal disposition
required by his trade ...."
It is a opportunity to remind the reader the married
foreign females is determined by their national law
according to Art 14 of the trade law 17/1999
Section Four Inheritance and Will
1- Legal Provision
Art 17 (1) of the Civil Code states that "....
inheritance, wills and other depositions taking effect after
death are governed by the national law of the ancestor,
the testator or the person disposing of property at
death...:
2- Inheritance
(a) Connecting Factor
The Egyptian law adopts a wide concept of
personal status which includes inheritance and will
among items of that concept so that it could be governed
by the person's nationality law. This attitude is justified
by the need for one applicable law to all matters of

42

succession regardless of the type of property within the

state i.e. whether the property is a movable or an
immovable.
(b) Concept of Inheritance
Protection of the rights of creditors and third
parties on succession belongs to the concept of the
property status, and procedure for inheritance is subject to
the forum's law.
(c) Included Matters
Matter of Inheritance include :
a- conditions for inheritance: Death of the ancestor,
lost persons, life of the heir, unborn children.
b- persons eligible for receiving inheritance, their
status and shares. This also include the case of
forbiddance from inheritance such as murder, different
faiths, Hagb, Rad and Owl
c- The nature of the succession process whether it
was obligator or compulsory.
(d) Matters Related to the Status of Property
There are certain matters which are not included in
the legal category of inheritance and they are subject to
Lex Rei Sitae. These matters are
a- The ancestor's creditors rights on the property
under succession
b-Publication of the right to inherit
c- Co-ownership between heirs.
43

(e) Vacant Succession

The determination of the vacant succession is left
to the forum's law because it is a matter of
characterization. Under the Egyptian law, vacant
successions exist when no one makes a claim against the
property of the ancestor as a heir or when all the eligible
heir have renounced the estate. According to Islamic
sharia vacant successions belongs to the public treasury
and this rule is applied because there are not any heirs not
because it is a matter of inheritance.
3-Will
The will is a transaction by which a person express
his wish to dispose his property in a certain way after his
death. This transaction is made by the testator's unilateral
will and it is not compulsory because it can be revoked
during the testator's life.
(a) Connecting Factor
The will is governed by the testator's national law
at the moment of his death. However, there are some
issue that require a special treatment.
(b) Substantive Issues in the Will
There are two types of substantive issues in the
will. The first type relates to the concept of succession
while the second type relates to the concept of the will as
an transaction. Issues of will that relate to the concept of
succession includes the testator's discretion, determining
the possible will-successors, cases of forbiddance from
enjoying a right under the will and the legal effects of the
will.
44

Substantive issues that are not included in this

conflict of law rule are the capacity to exercise the will
and vices of consent. Some scholars support the
application of the testator's national law at the time of
death to these issues. However, we support another
opinion. We believe that the testator's capacity to exercise
the will should be governed by both the law of the
testator at the moment of making the will and the
testator's national law at the time of death. In regards to
the vices of consent we support applying the testator's
national law at the moment of creating the will.
(c) Issues Related to the Status of Property
The law of the property's site will govern the
publication of the will and the creditor's rights in the
property. That law will also govern the co-ownership
between the heirs and will-successors.
(d) Formal Issues of the Will
The required formality for the will shall be
determined according to Art 17 (2) of the Egyptian Civil
Law which states that ".... the national law of the testator
at the time the will was made.. The same law will govern
the form of other dispositions taking effect after death..."
(e) Effects of the Public Policy on the Applicable
Law on Inheritance & Will
Foreign laws applicable to inheritance and wills
can be disregarded if they violate the public policy. This
can take place is the following situations:
a- Denial of inheritance due to sexual or racial
discrimination
45

b-Allowing heirs who had deliberately killed their

ancestor to inherit
c-Allowing illegitimate children to inherit
d-Allowing inheritance between a Muslim and
non-Muslim
e-Denying females the right to inherit
f-Favoring the elder son.
Section Three Conflict of law rules in Pecuniary
Rights
1- Introduction
Pecuniary rights are those which have a monetary
value or forms the person's wealth. Usually, private
international law scholars in Egypt treat this topic under
the heading of "obligations". Here the concept of
obligations is used with its widest sense i.e. the concept
covers both topics of personal and real rights. The topic
of personal rights is usually treated under the heading
"the applicable law to obligations". However, since that
obligations are divided according to their sources into
contractual and non-contractual sources the dominant
doctrine in Egypt teats the conflict of laws in three
different sub headings which are the applicable law to
contractual obligations, the applicable law to noncontractual obligations and the applicable law to the
status of property

46

2- Plan
This section will contain the following :
Subsection One: The applicable law to contractual
obligations
Subsection Two : The applicable law to noncontractual obligations
Subsection Three: The applicable law to status of
property

Subsection One : The Applicable Law to

Contractual Obligations
1- Introduction
Contractual obligations are those which are based
on contracts. Most of the international business
transactions are conducted through international
contracts. As a result, the proliferation of free market
concepts has increased the likelihood of conflict of law
issues raised by international contracts.
2- Positive Provision
The determination of the applicable law to
international contracts depends of the competent forum
whether it was a court or an arbitration panel. We will
concentrate on the first case which determining the
applicable law to an international contract before a court.
According to Art 19 of the Egyptian Civil Code "...the
contractual obligations are governed by the law of the
domicile when such domicile is common to the
47

contracting parties, and in the absence of a common

domicile by the law of the place where the contract was
concluded. These provisions are applicable unless the
parties agree, or the circumstances indicate that it is
intended to apply another law. However, contracts
relating to immovable are governed by the law of the
place in which the immovable in situated..."
We will start our analysis of this article by pointing
to its correct construction since that it was, unfortunately,
poorly drafted. Art 19 clearly adopts the party autonomy
choice of law rule for contracts. According to this rule
that parties are free , within certain limits, to choose any
law to govern their contract whether their choice was
express, in the form of a choice of law clause within the
contract in question, or a tacit choice of law that can be
inferred from the circumstances surrounding the
conclusion of the contract itself.
However, if the parties were not able to reach an
agreement on the law governing the contract the Egyptian
Judge should revert to any of the alternative choice of law
rules contained in Art 19 which are , the contracting
parties place of common domicile, the law of the place
where the contract is concluded respectively9.

Under Rome I Regulation on the Law Applicable to Contractual Obligations

No 593/2008 of 17 June 2008 Article 3 "..1. A contract shall be governed by the
law chosen by the parties. The choice shall be made expressly or clearly
demonstrated by the terms of the contract or the circumstances of the case. By
their choice the parties can select the law applicable to the whole or to part only
of the contract..."

48

3- Connecting Factor
According to the Art 19 a distinction must be
made between an existing choice of law , express or tacit,
and the absence of an agreement on choice of law.
I- An Existing Express Choice of Law
The correct construction of Art 19 direct us to
search for the parties' express choice of law before
searching for the parties' implied choice of law through
conducting an examination of the circumstances
surrounding the contract.
(a) Express Choice
The Egyptian legislator, like most modern
legislators, gave the parties the right to choose the law
governing their contract. This freedom of choice is based
on the parties freedom to tailor their contract specifically
for their needs10. In addition, an express choice of law for
the contract has its advantages. First, the parties will be
able to determine beforehand the rules applicable to their
contract. This eliminates the uncertainty about the
applicable law to the contract11. Second, express choice
of law is more efficient in terms of costs and time when a
dispute arises between the parties before the Court or the
Arbitration panel. The Judge, or Arbitrator, will focus on
applying the chosen law and not on finding the law
applicable to the contract which the parties' tacit consent
was inclined to choose.

10

Peter M. North, "General Course on Private International Law", Receuil Des

Cours, Volume 220, Year 1990, page 153
11
Ibid

49

(b) Extent of Freedom of Choice.

The extent of freedom given to the parties to
choose the law governing their contract is an issue that is
heavily debated between choice of law scholar between
those who see that parties are completely free to make
their choice and those who prefer setting some restraints
on the parties freedom of choice such as selecting the law
of a state that has a genuine connection to the
contract..,etc.
What makes this debate relevant under Art19 is
that there is no limits imposed by the wording of the
article on the parties' freedom of choice. Therefore, it is
acceptable to say that once the parties choose a foreign
law that law becomes incorporated into the contract as a
contractual stipulation. Consequently, the parties may
adopt certain rules and leave others. The parties my adopt
rules form several different foreign laws , depecage, and
they may even detach their contract from the ambit of any
national law, contract sans loi . This is supported by the
modern legislations on contractual choice of law12.
However, there is within the choice of law scholars
those who believe that the parties freedom in choosing
the law of their contract is not absolute. They restrict the
parties choice of law by requiring that the chosen law
should be connected to the international contract in
question. Otherwise, all choice of unconnected laws will
be disregarded13. The same applies to the parties choice
12

Recital 13 of the Rome I Regulation stated that " This Regulation does not
preclude parties from incorporating by reference a non-state body of law or an
international convention.
13
subsection 2 187 of the Restatement (Second) of Conflict of Laws (1971)
states that ".... The law of the state chosen by the parties to govern their

50

of international customs and rules known as Lex

Mercatoria14 or the parties attempt to freeze the rules
chosen by inserting a "Gel de Droit" clause15.
In my opinion, it does not matter whether the
parties have absolute freedom to choose the law of
contract or if their freedom is subjected to certain
requirements in order to have effect. The real issue at
stake is the parties' ability to bypass the application of
certain mandatory rules of a connected state or to enforce
an agreement which is intrinsically against the public
policy of that jurisdiction. If we reach an agreement that
none of the above will be allowed then the debate about
the parties' scope of freedom will lose its relevance.
This is currently the view adopted by the Rome I
regulation. In subsection four, article three of the
regulation there is an express statement that " Where all
other elements relevant to the situation at the time of
choice are located in one or more Member States, the
parties' choice of applicable law other than that of a
Member State shall not prejudice the application of
provisions of Community law, where appropriate as
implemented in the Member State forum, which cannot
be derogated form by agreement.." This means that under
Rome I regulation the parties can choose whatever rules
they want to govern their contract with two main
contractual rights and duties will be applied, even if the particular issue is one
which the parties could not have resolved by an explicit provision in their
agreement directed to that issue, unless either
(a) the chosen state has no substantial relationship to the parties or the
transaction and there is no other reasonable basis for the parties' choice, or..."
14
Peter M North, Supra note (10 ) at 162.
15
Pierre Mayer et Vicent Heuz, " Droit International Priv", 7e edition,
Montchrestien, 2001 page 481.

51

exception. First, the mandatory rules of a connected

Member State. Second, the European Union Regulations
and Directives that are applicable in the Member State
where the dispute concerning the contract itself is being
adjudicated. Here the parties freedom of choice is
checked by preventing them from evading the mandatory
rules.
(c) The Timing of Express Choice
The parties may choose the law governing their
contract when the contract concluded or afterwards
provided that the contract is valid from the outset
according to one the connecting factors included in Art
19. However, floating choice of law clauses where the
choice of law is dependent upon the occurrence of a
certain event such as a clause stating that "the ownership
of the goods shall be determined by the law of the place
where it exists during maritime shipping"
Floating choice of law clauses may not provide us
with an answer as to which law is applicable.
Furthermore, floating choice of law clauses will give rise
to the following problem: Which law should determine if
the choice of law event has occurred?
(d) Validity of the Choice of Law Clause
The choice of law clause, as any other clause in the
contract, must be valid in order to produce the required
legal effect, which is submitting the contract to the rules
of the applicable law. Although Art 19 did not state when
should we consider the choice of law valid we can at least
deduct from the general principles of law the following
requirements:_
52

1) The choice of law must be clear. A choice of law

clause in a contract must be clear in indicating which law
should govern the contract. If the clause is not clear then
we might face a situation where the Judge will resort to
applying a law according to the implicit choice made by
the parties or to resort to the alternative connecting
factors in Art 19. This lack of clarity will virtual render
the choice of law useless.
2) The choice of law must be made in Bona Fide. If
the choice of law clause was made in bad faith , either
through use of misrepresentation, mistake, undue
influence,...etc. then the clause will have no effect and it
will be vitiated by the Court. The choice of law clause, as
any other clause, is the product of the parties mutual
consent so it comes to no surprise that a defective consent
cannot produce a valid choice of law clause.
3) The choice of law must be legal. The choice of
law clause as any other clause in the contract should not
be used to attain illicit gains such as evading mandatory
rules or to bypass the public policy of a certain
jurisdiction16. As I have mentioned before, the parties'
scope of freedom to choose the law for their contract is
does not allow them to choose a law solely for the
purpose of avoiding certain rules in order to give the
parties to the contract the opportunity to maximize their
gains17. Mandatory rules and the public policy will
16

Peter M North, Supra note (10 ) at 165

Article 9 of Rome I Regulation states that Article 9
"1. Overriding mandatory provisions are provisions the respect for which is
regarded as crucial by a country for safeguarding its public interests, such as its
political, social or economic organization, to such an extent that they are
applicable to any situation falling within their scope, irrespective of the law
otherwise applicable to the contract under this Regulation.

17

53

always have an overriding effect over the law of contract

chosen by the parties18.

II- An Existing Implied Choice of Law

According to Art 19 the choice of law may be
express or implied although this poses a challenge for the
Judge to ascertain the law chosen by the parties to govern
their contract. This a de facto issue that is left to the trial
court's full discretion as a fact finder and escapes the
review by the court of cassation. Nonetheless we can give
examples of circumstances that may lead to the deduction
of an implied choice of law such as:
a-choice of the forum may indicate the choice of
that forum's law because the choice of forum might
reflect the parties' wish to entrust the resolution of any
future disputes concerning the contract to the forum's law
as it is applied by the forum.
b-The parties' usage of a certain terminology
belonging to a certain law may indicate the parties
intention to choose that law. In this case it is reasonable

2. Nothing in this Regulation shall restrict the application of the overriding

mandatory provisions of the law of the forum.
3. Effect may be given to the overriding mandatory provisions of the law of the
country where the obligations arising out of the contract have to be or have been
performed, in so far as those overriding mandatory provisions render the
performance of the contract unlawful. In considering whether to give effect to
those provisions, regard shall be had to their nature and purpose and to the
consequences of their application or non-application."
18
Frank Vischer, "General Course on Private International Law", Recueil Des
Cours, Volume 232, Year 1992. page 154

54

to expect that the parties' willful use of certain terms that

has a certain legal connotation of a certain law could
indicate their desire to choose that law to govern their
contract .
c-The recourse to the authentication in a certain
state may indicate the choice of that jurisdiction's law
because authentication is a requirement to render a certain
type of transactions effective vis-a-vis third parties.
Usually, the parties to a contract will not burden
themselves to authenticate their contract unless they
wished to render it effective under the law of the place
where the authentication took place. This in turn, leads us
to conclude that the parties wish to have their contract
governed by that law.
d- The parties' use of model contract which is
drafted according to a certain state's law19 such as
maritime insurance model contracts drafted by the
Lyold's syndicates based on English law or grain future
contracts prepared by Chicago Board of Trade based on
the law of the state of Illinois.
IV-Criticism
The doctrine of implied choice of law is criticized
for allowing the court to conclude the parties choice of
law form silence. The Judge's conclusions is ,at best,
second guessing the parties real intention without
asserting his findings on credible evidence. Indeed, some
choice of law scholars point that the absence of an
express choice of law is an evidence on none choice of
19

Bernard Audit, "Droit International Priv", 3e edition, Economica, Paris, 2000,

page 680.

55

law. However, this criticism cannot be positively

supported by the law in Egypt because the implied choice
of law is clearly adopted within the wording of Art 19 of
the Civil Code.
III-Clear Absence of Choice of Law
If there was no choice of law, express or implied,
then we can resort to certain legislative localizations for
the international contract. According to Art 19 the court
will be obliged to apply the law of the parties common
domicile and if there was not a common domicile then the
court will apply the law of the place where the contract
was made, Lex Loci Contratus
The legislative localization was praised for
protecting the justified expectations of the contracting
parties since they will know beforehand that the
applicable law if they did not make a choice of law.
Nevertheless, the above localization is criticized for
making it easy for the court to apply a law that may not
reflect the international contract's center of gravity. This
goes against the philosophy of private international law.
As a result, a substantial number of Egyptian conflict of
laws scholars suggested alternative judicial localizations.
one of the solutions adopted by modern choice of
law legislation is the application of the law of the place
where the habitual residence of the party required to
effect the characteristic performance of the contract. For
instance, in contracts of sale it is the seller's habitual
residence because his duty to deliver the goods and
transfer ownership is the characteristic performance to be
made under the contract of sale while in the contract of

56

services it is the service provider's habitual residence..and

so on20.
20

article 4 of Rome I Regulation Article 4

".....1. To the extent that the law applicable to the contract has not been chosen in
accordance with Article 3 and without prejudice to Articles 5 to 8, the law
governing the contract shall be determined as follows:
(a) a contract for the sale of goods shall be governed by the law of the country
where the seller has his habitual residence;
(b) a contract for the provision of services shall be governed by the law of the
country where the service provider has his habitual residence;
(c) a contract relating to a right in rem in immovable property or to a tenancy of
immovable property shall be governed by the law of the country where the
property is situated;
(d) notwithstanding point (c), a tenancy of immovable property concluded for
temporary private use for a period of no more than six consecutive months shall
be governed by the law of the country where the landlord has his habitual
residence, provided that the tenant is a natural person and has his habitual
residence in the same country;
(e) a franchise contract shall be governed by the law of the country where the
franchisee has his habitual residence;
(f) a distribution contract shall be governed by the law of the country where the
distributor has his habitual residence;
(g) a contract for the sale of goods by auction shall be governed by the law of the
country where the auction takes place, if such a place can be determined;
(h) a contract concluded within a multilateral system which brings together or
facilitates the bringing together of multiple third-party buying and selling
interests in financial instruments, as defined by Article 4(1), point (17) of
Directive 2004/39/EC, in accordance with non-discretionary rules and governed
by a single law, shall be governed by that law.
2. Where the contract is not covered by paragraph 1 or where the elements of the
contract would be covered by more than one of points (a) to (h) of paragraph 1,
the contract shall be governed by the law of the country where the party required
to effect the characteristic performance of the contract has his habitual residence.
3. Where it is clear from all the circumstances of the case that the contract is

57

This will help us achieve certainty when there is no

choice of law made by the parties. The applicable law
will be determined according to an objective criteria and
it will be fixed according to the specific nature of the
contract in question so that all contracts of sale will be
governed by the law of the seller's habitual residence...etc
The Judge will no longer indulge in second guessing the
parties true intentions and by time uniformity will be
established so that a series of default choice of law rules
can be created to face the parties' lack of choice.
This solution can be supported under Art 24 of the
Egyptian Civil Code since that Art 19 address the
situations where
(a) Included Matters.
i-Formation of Contract
Art 19 did not define which legal issues are to be
addressed by the law of contract. Nonetheless, the
Egyptian choice of law scholars general agree that the
following issues fall under the scope of Art 19. The
formation of the contract, Consent, Expression of will and
vices of the contract;
1. interpretation;
2. performance;
3. the consequences of a total or partial breach of
manifestly more closely connected with a country other than that indicated in
paragraphs 1 or 2, the law of that other country shall apply.
4. Where the law applicable cannot be determined pursuant to paragraphs 1 or 2,
the contract shall be governed by the law of the country with which it is most
closely connected..".

58

4.
5.
6.

7.

obligations, including the assessment of damages

in so far as it is governed by rules of chosen law.
the various ways of extinguishing obligations, and
prescription and limitation of actions;
The consequences of nullity of the contract..
Personal effects : which include defining the
contracting parties, beneficiaries, unilateral
contracts
Objective effects : which include content of
obligations, interpretation, performance, necessity
of summons, validity of penal clauses, legal
compensation, contractual liability, defense of nonperformance, characteristics of obligations and
transmission of obligations.
ii- Excluded Matters

Certain legal issues are not included despite their

close relevance to contracts. These issues are excluded
because according to the Egyptian Legislator they are
dealt with other choice of law rules such as the capacity
to contract and formality of contracts. Also, among other
things the following contracts are excluded: contract of
marriage, contract of adoption, contract of succession and
contracts concerning an immovable according to
paragraph two of Art 19.
4-Particular Contracts
Some contract have a distinctive legal nature which
merits devising special choice of law rules either because
the formation of those contracts are affected by a
statutory mandate or because the Egyptian judiciary
believed that the standard choice of law rule embodied in

59

Art 24 will do violence to the administration of justice in

absence of a statutory mandate.
(a) The Applicable law to International
Contracts of Labor
Contracts of labor require special treatment under
the conflict of laws because it is general accepted that the
parties to labor contracts do not have full freedom to
choose the law governing their contract. Labor law is
characterized by the unmistaken presence of mandatory
rules that interfere with every aspect of the contract of
labor. Form the formation of the contract to the
determination of the wage and finally the termination of
the labor relation is almost governed solely by
mandatory rules.
The draft for the Egyptian Civil Code contained a
special conflict of law rule for international contracts of
labor which was "...the law of the place of the central
management of the labor..." that rule was later on omitted
in favor of leaving the matter to be resolved through
judicial improvisation. The majority of scholars in Egypt
favored another rule according to which the international
contract of labor was governed by the law of the place
where the labor is performed. Nonetheless, the Egyptian
cassation court adopted the rule contained in the Egyptian
Civil Code in one of its rulings in 1967.
Some scholars see that a distinction must be made
between the regulatory aspects of the contract of labor
such as minimum wages, maximum hours...et which is
governed by the mandatory rules and the non-regulatory
aspects of the contract of labor which is not governed by

60

the police rules and could ,therefore, be governed by the

law chosen by the parties.
(b) The Applicable Law for Transfer of
Technology Contracts
The Egyptian trade law defines in Art 72 the
transfer of technology contract as "... an agreement in
which the supplier of the technology undertakes to
transfer
technical know-how to the importer of
technology against payment to be used in a special
technical manner of production or development of a
certain commodity, the installation or operation of
machinery or equipment or for the provision of services.
The mere sale, purchase, leas or rental of commodities
shall not be considered a transfer of technology. Nor shall
the mere sale of trademarks, patents or licensing
agreements be considered a transfer of technology unless
it was set forth as a part of or in connection to a transfer
of technology...."
If such a contract was to be enforced in Egypt then
it is subject only to the Egyptian law event when it is
Egyptian. This contract will be governed by the Arts 72 87 and in case of lack of legislative provisions the court
will resort to the general principles of Egyptian law. This
is a prime example of using material rules to govern what
should have been an international contract. In the case of
transfer of technology contracts only the Egyptian law is
applicable and there is no room for the parties to choose a
law to govern their contract.

61

(c) Contracts of Carriage

International contracts of carriage are governed by
international conventions that determine the rights and
duties of the parties to a contract of carriage. So far Egypt
is a party to two main convention the United Nations
Convention on the Carriage of Goods by Sea 1978 known
as The Hamburg Rules and the Convention for
Unification of Certain Rules Relating to International
Carriage by Air 1929 known as Warsaw 1929
Convention.
i-The Contract of Carriage of Goods By Sea.
According to Art 2 of the Hamburg Rules:
" 1. The provisions of this Convention are applicable to
all contracts of carriage by sea between two different
States, if:
(a)The port of loading as provided for in the contract of
carriage by sea is located in a Contracting State, or
(b) The port of discharge as provided for in the contract
of carriage by sea is located in a Contracting State, or
(c) One of the optional ports of discharge provided for in
the contract of carriage by sea is the actual port of
discharge and such port is located in a Contracting State,
or
(d) The bill of lading or other document evidencing the
contract of carriage by sea is issued in a Contracting
State, or

62

(e) The bill of lading or other document evidencing the

contract of carriage by sea provides that the provisions of
this Convention or the legislation of any State giving
effect to them are to govern the contract.
2. The provisions of this Convention are applicable
without regard to the nationality of the ship, the carrier,
the actual carrier, the shipper, the consignee or any other
interested person.
3. The provisions of this Convention are not applicable to
charter-parties. However, where a bill of lading is issued
pursuant to a charter-party, the provisions of the
Convention apply to such a bill of lading if it governs the
relation between the carrier and the holder of the bill of
lading, not being
the charterer.
4. If a contract provides for future carriage of goods in a
series of shipments during an agreed period, the
provisions of this Convention apply to each shipment.
However, where a shipment is made under a charterparty, the provisions of paragraph 3 of this Article apply."
Therefore, if a contract of carriage of goods by sea
fulfills any of the above requirements it will be governed
solely by the Hamburg rules. On the other hand, if the
contract of carriage of goods does not fulfill those
requirement then we must return to the general provisions
of Egyptian Maritime Law no 8 for 199021.

21

The Contract of Carriage of Goods by sea is governed by articles 196 -247

63

ii- The Contract of Carriage of Goods By Air.

As in Maritime Transport, Air Transport in Egypt
is governed by two sets of rules. The first set of rules is
the Warsaw 1929 Convention and the subsequent altering
protocols which Egypt has ratified22.
According to Article 1 of the Warsaw Convention "
"1. This Convention applies to all international
carriage of persons, luggage or goods performed by
aircraft for reward. It applies equally to gratuitous
carriage by aircraft performed by an air transport
undertaking.
2. For the purposes of this Convention the expression
"international carriage" means any carriage in which,
according to the contract made by the parties, the
place of departure and the place of destination,"
whether or not there be a break in the carriage or a
transshipment, are situated either within the
territories of two High Contracting Parties, or within
the territory of a single High Contracting Party, if
there is an agreed stopping place within a territory
subject to the sovereignty, suzerainty, mandate or
authority of another Power, even though that Power
is not a party to this Convention. A carriage without
such an agreed stopping place between territories
subject to the sovereignty, suzerainty, mandate or
authority of the same High Contracting Party is not
deemed to be international for the purposes of this
Convention.
22

The Warsaw Convention has been altered by the Hague Protocol 1955, the
Guadalajara Convention 1961 and finally the Montreal 1999 Convention which
is still not in force in Egypt.

64

6
3. A carriage to be performed by several successive
air carriers is deemed, for the purposes of this
Convention, to be one undivided carriage, if it has
been regarded by the parties as a single operation,
whether it had been agreed upon under the form of a
single contract or of a series of contracts, and it does
not lose its international character merely because
one contract or a series of contracts is to be
performed entirely within a territory subject to the
sovereignty, suzerainty, mandate or authority of the
same High Contracting Party.
Article Two of the convention also specify who is to
be governed by the text of the Warsaw Convection "
1. This Convention applies to carriage performed by
the State or by legally constituted public bodies
provided it falls within the conditions laid down in
Article 1.
2. This Convention does not apply to carriage
performed under the terms of any international postal
Convention."
Therefore, any contract of carriage by Air the
does not fulfill the above requirements will not be
governed by the Warsaw Convention but it will be
governed by the Chapter Seven and Eight of the
Egyptian Civil Aviation Law no 28 / 1981

65

5- An Appraisal
After analyzing art 19 it is time to make our
own appraisal of its suitability in solving the present
day challenges imposed by choice of law in
contractual obligations.
First, we must admit that Art 19 is poorly
drafted to the extent that it's utility is severely
impaired. The text of the article is focused on implied
choice of law rather than on demonstrating the basic
party autonomy choice of law rule. As I have
demonstrated earlier Art 19 does not lay down the
requirements of a valid binding choice of law clause
nor does it determine the limits imposed on the
parties choice of law. As a matter of legislative
drafting more attention should have been devoted to
express choice of law rule than the implied choice of
law rule.
Second, it is no secret that Art 19 is now
outdated and that Judicial application of that article
has not yet succeed in accommodating the current
updates in this field. As we have seen in Rome I
Regulation, it is now acceptable for the Court to
apply the mandatory rules of State other than that of
the Forum or the chosen law if that state has
sufficient connection with the performance of the
contract. This is not the case with Art 19 which is
silent on this issue.
In addition, Art 19 rests on the premises that
the parties choice of law is limited to choosing a law
that belongs to a certain legislation. This an outdated
view because it is now acceptable for the parties to
66

choose the rules of a model law or contract prepared

by an organization, cherry-picking rules form various
jurisdictions to govern various aspects of the
contract.
Another aspect of Art 19's antiquity is the use
of place of contract, the parties common domicile as
alternative choice of law rules. The modern day
practice proves that the place of contract or the
parties common domicile is a futile solution because
most contracts are done between contracting parties
of different domiciles through exchange of
communication.
The present modern choice of law doctrine
resort to the law of the place where the habitual
residence of the party required to effect the
characteristic performance of the contract. Hopefully,
the Courts will develop by time a number of
alternative choice of law rules that reflect the
intrinsic nature of the contract in question.
Subsection Two : The Applicable Law to NonContractual Obligations
1- Introduction
The non-contractual obligations are obligations that
results from non-contractual sources such as torts and
unjust enrichment.
2- Legal Provision
According to Art 21 of the Egyptian Civil Code
"...Non-contractual obligations are governed by the law
67

of the state in whose territory the act gave rise to the

obligation took place...However, when the obligation
arises from a tort the provisions of the preceding
paragraph shall not apply to an act which occurred abroad
and which although is considered unlawful in accordance
with the law of the state in where the act occurred if that
act was lawful in Egypt..."
3- Connecting Factor
There are many possible applicable laws to any
non-contractual obligation. For example, torts can be
governed by the law of the place where the tort occurred ,
Lex Delicti Commissi, or the law of the place where the
action for damages was brought which is the forum's law.
Finally, the tort can be governed by the proper law of the
tort Lex Propria Delicti. The above goes to unjust
enrichment. Here we have the law of the place where the
enrichment has occurred or the law of the place where the
poverty occurred.
However, the Egyptian legislator choose to follow
the steps of other legislators in that matter by selecting
the law of the place where the act occurred regardless of
whether it is a beneficial or a harmful act. This is said to
be an application of the local law. Nonetheless, with torts
the legislator made an exception. In order for the
Egyptian court to use the above conflict of law rule it
must ascertain that the unlawful act committed outside
Egypt is also unlawful act according to the Egyptian law.
Although, some writers argue that we did not need that
exception because it finds its reasons in the concept of
public policy.

68

The local law in most cases can be easily

ascertained and the parties will normally expect it.
Nevertheless, there are incidents when the court might
find it difficult to determine the local law because the
location of the harmful act is not defined or if the
elements of tortuous liability , injury and harmful act, are
scattered among several jurisdictions. This occurs when
the harmful act takes place in one state while the injury
itself occurs in another jurisdiction. The same goes to
unjust enrichment when the beneficial act occurs in one
state and the poverty occurs in another jurisdiction.
As regards the places of accidents, harmful acts,
some scholars suggested that we interpret the concept of
local law widely so that it may include the concept of
social milieu. According to those scholars the law of the
local place does not necessarily govern the act in its
material sense. For example suppose a groups of
American students went to Canada for camping. Suppose
that an accident occurred there which was caused by a
harmful act committed by an American student by which
another American student was harmed. In this case the
applicable law is the American law not the Canadian law
because all of the elements of this case points to a social
milieu where the American law's application will be the
appropriate. Despite that the dominate doctrine in Egypt
supports the social milieu idea the text of the Art 21
prevents us from adopting that view. As regards to the
problem of the scattered elements of the liability may
suggestions were made in line with the search for the
most connected law.

69

4-Legal Concept.
The concept of non-contractual obligations covers
the following:
a- Elements of tortuous liability : unlawful act,
prejudice and causal link
b- Element of unjust enrichment : enrichment,
poverty and causal link

Subsection Three: The Applicable Law to the

Status of Property
1- Introduction
Private international law deals with rights in
property which needs a choice of law rule to determine
the law governing those rights either in rem rights or in
personam rights. For several decades it was a given that
the choice of law issues in those assets are governed by
the famous Lex Rei Sitae choice of law rule .
Although this rule seems to be ,at first blush,
simple and straightforward in reality it is not. First, this
rule is used for both immovables and movables.
Immovables are fixed by their nature but movables are
not. Movables are by nature capable of being moved from
one state to another which gives arise to the "mobile
choice of law" problem. Second, this rule presupposes
that the asset has a physical location but in reality there

70

assets that do not have a physical location such as debts,

negotiable instruments and intellectual property23.
Therefore, in order to address the matter properly we
shall deal with choice of law in rights in physical assets,
bearing in the mind the distinction between immovables
and movables, and then we shall deal with choice of law
issues in non physical.
I-Physical Assets
Physical assets are assets that occupy a certain
space. The choice of law issues in those assets are
governed by the Lex Rei Sitae choice of law rule as
embodied in Art 18 of the Egyptian Civil Code "...the
possession, ownership and other real rights in
immovables are governed by the law of the place where
the immovable property is situated and the law of place
where the movable was situated at the time when the
event giving rise to acquisition, loss of possession,
ownership or other real rights in the movable....."
It is clear from the text of Art 18 that the Egyptian
legislator chose, like most of the world's legislators, that
the law of situs will govern solely24 all legal issues
relating to rights in an asset whether it was a movable or
immovable. It is the law of situs that defines what the
rights in an asset and how it can be acquired created and
transferred25. As we have seen earlier on, the law of situs
governs the question of whether a particular asset is

23

Pierre Mayer et Vicent Heuz, Supra note (15) at, page 429:
Bernard Audit, Supra note (19) at, page 633
25
Pierre Mayer et Vicent Heuz, Supra note (15) at page 432
24

71

classified as a movable or immovable26. Nonetheless,

that does not mean that Art 18 is applied blindly to both
types of physical assets without due regard to the
differences inherent within their nature
(a) Immovables
The Lex Rei Sitate choice of law rule was devised
specifically for Immovables because they have a fixed
location that does not change periodically and the
historical socio-economic and policitical significance of
real estate. In fact, the Lex Rei Sitae choice of law rule
was a manifestation of the State's exercise of its
sovereignty over its natural resources by applying its law
exclusively to address all legal issues relating to
immovables situated within its borders27. In addition,
practical reasons helped the dominance of the Lex Rei
Sitate choice of law rule. The use of real estate as a
valuable collateral for secured credit and the subsequent
need to keep track of all transactions relating to a
particular real estate to preserve the secured creditor's
right in the collateral means that a recording system
administrated by the State where the asset located
becomes a necessity.
As a result, it is for the creditors' and the owners' best
interest that the law of the State where the immovable is
situated will govern all transactions that aim at altering
the proprietary rights in, or establishing collateral over an
immovable. Therefore, it does not surprise anyone to
assume that there is a general consensus that the
26

Dicey & Morris, "The Conflict of Laws", edited by Lawrence Collins, Volume
2, Sweet & Maxwell, 1993, page 915
27
Pierre Mayer et Vicent Heuz, Supra note (15) at page 430.

72

transactions affecting real estate will always be governed

by the Lex Rei Sitae.
Nonetheless, choice of law scholars have
recognized that there is a need to distinguish between the
contractual effects of a transaction that aims at altering
the proprietary rights in, or establishing collateral over an
immovable and the actually proprietary effects of the
transaction. It is general agreed that the contractual
effects of the transaction is governed by its own proper
law, the Lex Contractus, while that proprietary effects of
the transaction is governed by the Lex Rei Sitae28.
To illustrate I give this example. Suppose that a
Dutch firm is interested in buying a building in Cairo to
use it as a warehouse. Suppose also that the parties, the
firm and the owner of the warehouse, agreed that the
contract of sale will be governed by the Dutch law. In this
case the Dutch firm's duty to pay will be governed by the
Dutch law, the law of contract, because it is a contractual
effect that does not alter the proprietary rights in the
warehouse nor it establishes a collateral over the
warehouse. On the other hand, the original owner's duty
to transfer the ownership in the warehouse will be
governed solely by the Egyptian law, the Lex Rei Sitae,
because this duty aims at altering the proprietary rights in
the warehouse.
Of course, there are instances when the above
distinction between the contractual effects to the
transaction and its proprietary effects cannot be
implemented. This is the case when the law of contract
creates a proprietary rights in the immovable that the Lex
28

Id., at 432; Dicey & Morris, Supra note (26) at page 967

73

Rei Sitae does not recognize such as tenancy in common,

a proprietary right recognize in most common law
systesm, or when the law of contract requires formalities
unknown to the Lex Rei Sitae29. It those cases, the Lex
Rei Sitae prevails over the law of contract.
(b) Movables
However, difficulties may arise when the assets is a
movable that can change its location at any given point of
time. This gives rise to mobile choice of law problem
because of the movable's constant change of location and
the corresponding change in the Lex Rei Sitae30.
Fortunately, there are solutions to this problem. First,
according to Art 18 of the Egyptian Civil Code the place
where the movable was situated governs all issues
relating to the proprietary rights in the movable asset.
Therefore, the validity of a transfer of ownership in the
movable and the proprietary effects of that transfer is
governed by the law of the state where the movable is at
the time of the transfer31.
Consequently, if the movable was in Egypt and
while it was within the Egyptian borders the owner of the
movable decided to sell it before the movable was moved
to India it is the Egyptian law which will determine the
terms and conditions for transferring the ownership in
that movable. If that transfer was valid according to
Egyptian law then it will remain valid even after the
movable moves to India and even if the above transfer
was invalid according to Indian law and vice-versa.
29

Pierre Mayer et Vicent Heuz, Supra note (15) at page 432

Id., at 438
31
Dicey & Morris, Supra note (26) at page 965
30

74

Second, If we are dealing with a shipment of

movables, such as merchandise and bulk cargo, which is
in transitu then according to the dominate doctrine in
Egypt the applicable law will be the law of the place of
destination if the merchandise was shipped by road or rail
and in case of cargo shipped on ships and airplanes we
will apply the law of the flag regardless of the actual
place where the cargo exists32.
Third, certain movables such as airplanes and ships
have their own specific choice of law rules. The
transaction that aims at altering the proprietary rights in,
or establishing collateral over an airplane is governed by
the law of the state where the airplane's register exist. The
same applied to ships where transaction that aims at
altering the proprietary rights in, or establishing collateral
over a ship is governed by the law of the ship's flag33.
II-Non-Physical Assets
The Lex Rei Sitae choice of law rule was devised
for assets that occupy a physical space but it was never
intended to be used with non-physical assets which do not
occupy a physical space because they are a mere legal
fiction without any tangible existence34. Assets like debts,
Intellectual property are now more valuable than any
physical asset whether movable or immovable. It is true
that some legal systems tend to deal with such assets as
movables but does not helps overcome the fact that Lex
Rei Sitae choice of law rule is based on a physical
connecting criterion, the location of the asset itself.
32

Pierre Mayer et Vicent Heuz, Supra note (19) at page 631

Id., at 431.
34
Id., at 429.
33

75

As a consequence, choice of law scholars either

devised a fictional location for the non-physical asset or
devised new choice of law rules that are not based on the
asset's location. An example of the first approach is
shares and bonds issued by corporations. The shares and
bonds are representative of the right to ownership in the
corporation's capital and the right to demand payment of
a certain sum of money. Neither of them have a physical
location yet, choice of law scholars and courts decided
that the place where the corporation's registrar is located
will govern the proprietary rights in the shares and
bonds35.
Another example for a fictitious location approach
in non-physical assets is debts that are not embodied in
negotiable instruments. The location of those debts for
the purpose of determining the law governing their
transfer is the debtor's place of residence36. The same
principle applies to industrial designs which are governed
by the law of the place where it was registered37.
Nonetheless, the Egyptian legislator chose to
abandon this approach when it comes to negotiable
instruments. According to Art 387 of the Egyptian
Commercial Code " The form of any bill of lading is
regulated by the laws of the territory in which the bill of
exchange has been signed
If, however, the obligation entered into by means
of a bill of exchange are not valid according to the
provisions of the above law, but are in conformity with
35

Audi, Supra note ( 19) at 650; Dicey & Morris, Supra note (26) at page 931.
Dicey & Morris, Supra note (26) at page 924.
37
Pierre Mayer et Vicent Heuz, Supra note (15) at page 430.
36

76

the Egyptian law the circumstances that the previous

contracts are irregular in form does not invalidate the
subsequent contracts in Egypt"38.
The Egyptian legislator adopted a similar rule for
cheques in art 481 of the Egyptian Civil Code" The form
of any contract arising out of a cheque is regulated by the
laws of the territory in which the contract has been
signed
If, however, the obligation entered into by means
of a cheque are not valid according to the provisions of
the above law, but are in conformity with the Egyptian
law the circumstances that the previous contracts are
irregular in form does not invalidate the subsequent
contracts in Egypt"
This means that debts embodied in negotiable
instruments should be formally valid either according to
the place where the instrument was made or according to
the Egyptian law. These choice of law rules are based on
novel legislative policies. First, they represent an
exception form Art 20 policy of validating the contracts
formally. We do not have here several alternative
connecting criterion although that the formal invalidity of
the negotiable instrument has a far reaching effect over
the substantive validity of the contracts arising from the
instrument. e.g. the contracts will no longer be valid as
contracts derived from an obligation to pay an negotiable
instrument if the negotiable instrument does not met the
formal requirements in the law of the place where it is
made.
38

Note that the same rule is applied to promissory notes by virtue of Art 470 of
the Egyptian Commercial Code.

77

Another novel aspect of the above rules is the use

of Egyptian law's provisions as an escape device to avoid
nullifying the formally invalid negotiable instruments
despite the fact that those instruments were not made in
Egypt and there it is not necessary that they have any
physical connection with Egypt. This represents the
Egyptian legislator's wish to move away from the
fictitious location approach to a rule of validation
approach to save the negotiable instruments based
contracts.

78